[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
-------------------------------------------U.S. COURT OF APPEALS
No. 06-11474 ELEVENTH CIRCUIT
FEBRUARY 7, 2007
Non-Argument Calendar
-------------------------------------------- THOMAS K. KAHN
CLERK
BIA Nos. A97-199-435 & A95-199-436
HECTOR YOVANNY HERRERA HERNANDEZ,
GRACE CONTRERAS LOPEZ,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
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(February 7, 2007)
Before EDMONDSON, Chief Judge, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Hector Yovanny Herrera Hernandez (“Herrera”) and his wife, Grace
Contreras Lopez (“Lopez”), petition for review of the Board of Immigration
Appeals’ (“BIA”) adoption of the Immigration Judge’s (“IJ”) order of removal and
denial of their application for asylum and withholding of removal under the
Immigration and Nationality Act (“INA”) and the United Nations Convention
Against Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment (the “CAT”).1 8 U.S.C. §§ 1158, 1231, 8 C.F.R. § 208.16(c). We
find no reversible error; we deny the petition.
Herrera, a native and citizen of Colombia, entered the United States in April
1999 and was authorized to remain until April 2000. Lopez, also a Colombian
native and citizen, was admitted to the U.S. in May 2000 and was authorized to
remain until November 2000. Herrera filed an application for asylum and
withholding of removal under the INA and the CAT in May 2003, contending that
he was persecuted on account of his political opinion and membership in a
particular social group. In January 2003, the Department of Homeland Security
(“DHS”) issued Herrera and Lopez with Notices to Appear, charging them with
removability under INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), as
nonimmigrants who remained in the U.S. for a time longer than permitted.
1
The parties’ cases were consolidated for hearing and decision before the IJ, although the BIA
issued separate decisions.
2
At the removal hearing before the IJ, Herrera conceded removability and
renewed his application for asylum and withholding of removal. He argued that,
as a former member of the Colombian National Army, members of the
Revolutionary Armed Forces of Colombia (“FARC”)--several of which were
childhood friends--approached him at least three times from 1986 to 1999,
requesting that he join their cause and assist them in acquiring military
information and materials such as uniforms, gun refills, and ammunition. Upon
his refusal to cooperate, FARC members threatened him and his family. He
testified that he had considered the past threats to be serious and feared bodily
harm, enough so that after one encounter in 1995, he moved from Bogota to the
city of Manizales to escape the FARC. During the eight to ten months he lived
there, he had no encounters with the FARC. He returned to Bogota in 1996 to find
more stable work. He had no further contact with the FARC until February 1999,
when FARC members approached him insisting that he work with them, detained
him overnight, beat him, and stole money from him. He and his wife left
Colombia two months later.
The IJ denied petitioners’ applications for asylum and withholding of
removal. As an initial matter, the IJ concluded that the asylum application was
time-barred under INA § 208(a)(2), 8 U.S. C. § 1158(a)(2) (requiring application
3
to be filed within one year of arrival in the U.S.), and that Herrera’s testimony
did not establish changed conditions or extraordinary circumstances to excuse
the delay. In addition, the IJ found that, even were the application considered on
the merits, Herrera failed to establish a well-founded fear of persecution and thus
could not meet the higher standard required for withholding. In reaching this
conclusion, the IJ entered an unfavorable credibility rating, noting several
specific inconsistencies in Herrera’s testimony and application. The IJ also
found that the evidence showed that Herrera could avoid persecution by
relocating within Colombia.
On appeal, the BIA affirmed and adopted the IJ’s decision. The BIA
specifically agreed that Herrera’s failure to file a timely application was not
excused under the extraordinary circumstances exception. The BIA also
determined that Herrera’s experiences did not rise to the level of past persecution
or torture, and it was therefore unnecessary to address specifically the issue of
credibility. And, the BIA concluded that Herrera failed to qualify for
withholding of removal under the INA or the CAT, “as no facts were presented
to show that it is more likely than not that he will be persecuted or tortured in
Colombia upon return.”
4
On appeal, Herrera argues that the IJ and BIA erred in denying his claims
for asylum and withholding of removal. He contends that his repeated refusals
to cooperate with the FARC established past persecution or a well-founded fear
of future persecution on account of his membership in a particular social group:
former members of the Colombian Army. He also argues that the IJ
overemphasized facts that were properly considered in terms of the weight of the
evidence, rather than in terms of Herrera’s credibility.
We review only the BIA’s decision, except to the extent that it expressly
adopts the IJ’s decision. Nreka v. U.S. Att’y Gen., 408 F.3d 1361, 1368 (11th
Cir. 2005). Here, although the BIA stated that it adopted and affirmed the BIA’s
decision, it listed specific grounds for affirmance. Therefore, we will review the
grounds enumerated in the BIA’s decision and will examine the IJ’s decision
only as his findings support those grounds. We review the BIA’s and IJ’s factual
findings under the substantial evidence test; we thus accept such findings unless
the record “compels” reversal. Mendoza v. U.S. Att’y Gen., 327 F.3d 1283,
1287 (11th Cir. 2003). We review the BIA’s and IJ’s legal determinations de
novo. Brooks v. Ashcroft, 283 F.3d 1268, 1272 (11th Cir. 2002).
We note that only Herrera’s claims for withholding of removal and relief
under the CAT are before this Court. The BIA determined that Herrera was
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statutorily ineligible for asylum, and we lack jurisdiction to review this finding.
Mendoza, 327 F.3d at 1287. Although Herrera’s brief primarily addresses his
asylum claim, repeatedly referencing the “well-founded fear” standard rather
than the higher standard for withholding of removal, the same facts and
arguments apply to both claims; and we may properly review his withholding
claim.
Section 241 of the INA, 8 U.S.C. § 1231(b)(3)(A), entitles an alien to
withholding of removal if he can show that his life or freedom would be
threatened on return to his country on account of his race, religion, nationality,
membership in a particular social group, or political opinion. If the alien
establishes past persecution, future persecution is presumed unless DHS shows
that conditions within the country have changed or that relocation to another part
of the country would avoid the threat and is reasonable. 8 C.F.R. §
208.16(b)(1)(i).
An alien who has not shown past persecution may still be entitled to
withholding of removal if he can demonstrate that he “more likely than not”
would be persecuted or tortured upon his return to the country in question. Id. §
208.16(b)(2). An alien fails to meet this burden if the IJ finds that the alien
could avoid the threat by relocating within his country. Id.
6
Here, Herrera failed to meet his burden for withholding of removal under
the INA. The record does not compel reversal of the BIA’s finding that Herrera
did not suffer past persecution or establish the required probability of future
persecution upon his return to Colombia. Even assuming that Herrera’s
testimony about his encounters with FARC is credible and that he is a member of
a protected social group, a handful of incidents over a thirteen-year period does
not rise to the level of past persecution, especially where Herrera sustained no
physical harm in all but one of those incidents. See Zheng v. U.S. Att’y Gen.,
451 F.3d 1287, 1290-91 (11th Cir. 2006) (five-day detention did not compel
finding of persecution); Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231
(11th Cir. 2005) (noting that persecution is an “extreme concept” and denying
finding of persecution where petitioner was repeatedly threatened and her
mailbox bombed).
The erratic nature of Herrera’s encounters with FARC also contradicts his
argument that it is more likely than not that he will be persecuted or tortured
upon his return. And, substantial evidence supports the IJ’s finding that Herrera
could avoid a future threat by relocating within Colombia. In fact, the record
shows that he had successfully avoided the FARC in the past by relocating,
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albeit with some loss in income. Thus, Herrera failed to establish his eligibility
for withholding of removal under the INA.
For the reasons listed above, substantial evidence supports the BIA’s
denial of relief under the CAT, as Herrera failed to show that it is “more likely
than not” that he will be tortured in the country of removal. 8 C.F.R. §
208.16(c)(2).
We conclude that substantial evidence supports the BIA’s denial of
withholding of removal pursuant to the INA and the CAT. Accordingly,
Herrera’s petition for review is denied.
PETITION DENIED.
8